Doctors go to court to keep billings secret
Group seeks to overturn order that would force ministry to reveal names of province’s top OHIP-billing physicians
Two groups of doctors and the Ontario Medical Association are headed to court Monday to argue that OHIP payments to top-billing physicians are “personal information” and should not be public.
The information and privacy commissioner last year ordered the public disclosure of the top billers’ identities, along with amounts each receives in payments from the taxpayer-funded insurance plan. The information is business-related, not personal, and should be public because of the importance of trans- parency of government expenditures, the ruling said.
Ajudicial review of that decision is being sought by the OMA and two groups of doctors — known in court submissions only as “several physicians affected directly by the order” and “affected thirdparty doctors.” They are asking a threejudge panel in Divisional Court to quash the information and privacy commissioner tribunal’s order.
The case originated more than three years ago with a freedom of information request from the Star to Ontario’s Health Ministry for physician-identified data on the top 100 billers.
The ministry granted partial access — payments and most medical specialties — but withheld physician names, deeming that their release would be an unjustified invasion of privacy. The Star successfully appealed that decision to the privacy commissioner, arguing there is a public interest in disclosure of the names.
The top 100 OHIP billers took in a combined $191million in 2012-13, according to data supplied by the ministry. The highest biller alone claimed more than $6 million, while the second- and thirdhighest billers each claimed more than $4 million. Nineteen doctors received payments of more than $2 million each.
The judicial review of the case is significant because the outcome could affect how much data on physician billings can be released in the future. Pending the outcome of this case, the information and privacy commissioner has put on hold another appeal by the Star, this one seeking the release of physician-identified billings for all Ontario doctors.
Other jurisdictions — including British Columbia, Manitoba and the United States — already release such data annually.
And Ontario already makes public the names and salaries of doctors employed in the public sector — for example, at hospitals — in its annual Sunshine List of public servants earning more than $100,000.
But they represent only a small fraction of Ontario’s 29,000 physicians, most of whom work as independent contractors.
The privacy commissioner’s June 2016 ruling in the case states that OHIP payments contribute to physicians’ gross revenue, which is not the same as personal income. The information, therefore, is not protected under the privacy provisions of the Freedom of Information and Protection of Privacy Act (FIPPA), adjudicator John Higgins wrote.
His decision departed from previous rulings by the commissioner that found such information to be personal. The Supreme Court has found that past decisions are not binding in such administrative decision-making.
Even if it were personal information, Higgins wrote, there is a compelling public interest in disclosure, which overrides FIPPA privacy exemptions.
For Higgins’s order to be quashed, the Divisional Court would have to find that it was “unreasonable.”
The appealing doctors argue that Higgins erred by not being consistent with previous privacy commissioner rulings. The factum from “several physicians” and “affected third-party doctors” states:
“The adjudicator’s determination that the information being sought was not ‘personal information’ is wrong as a matter of both fact and law and is clearly unreasonable. While he recognized the existence of those prior determinations . . . he chose to ignore or distinguish them on specious grounds while ignoring the overwhelming weight of authority they supply.”
The doctors argue, “One’s name is the most intimate of personal information.”
These doctors also contend the privacy watchdog was not objective in its handling of this case. They point to a 2014 Star article, which revealed the paper was launching the appeal. Information and privacy commissioner Brian Beamish was quoted as saying there was a growing trend toward transparency of information related to government expenditures and that an appeal would provide a good opportunity to take a fresh look at the issue.
Beamish was initially the adjudicator on this case, but recused himself at the request of the doctors.
The OMA argues that physician names should remain confidential given that doctors are not government employees.
“Physicians are not public servants with clearly defined salaries, benefit plans and government pensions. Quite simply, revenue (from OHIP billings) is not income,” the OMA’s factum states.
“Many physicians have additional huge overhead costs which can include not only rent or equipment but the employment of dozens of support staff and/or allied health professionals. Physician billing information is simply not comparable to the salary of police chiefs, and has such a high likelihood of misinterpretation by the public (as) to render it meaningless,” it continues.
Afactum from the privacy commissioner argues that the application for the judicial review should be dismissed because the doctors have not “positively demonstrated the order was unreasonable.”
It charges that the doctors, in their factums, “speak little of the actual decision which is the subject of this judicial review. Instead, they seek to re-argue . . . their position before this court.”
The Star’s factum notes that under FIPPA, “the presumption is access.” The burden of proof rests with those seeking to limit disclosure to make their case.
Spending on health consumes almost half of the provincial budget and payments to doctors under OHIP represents a significant portion of that spending, the Star’s factum states.
“Government expenditures have been recognized as critically related to the transparency and accountability goals of access to information legislation,” it says, adding that the government routinely discloses payments to consultants, private parties and employees.
The doctors argue that information and privacy commissioner Brian Beamish was not objective in his handling of the case.